R v Kirby [2019] NZDC 7644

Published 13 June 2019

Application for a discharge without conviction — operating an aircraft in a careless manner — pilot — consequences of conviction — Civil Aviation Act 1990, s 43A — Sentencing Act 2002, ss 106 & 107. The defendant applied for a discharge without conviction following pleading guilty to one charge of operating an aircraft in a careless manner. The defendant had flown in a careless manner through poor weather conditions with a student in the cockpit. The applicable test was that the gravity of the offending must be wholly outweighed by the actual and potential consequences of a conviction. It was determined the gravity of the offending fell into the category of moderately serious. Flying aircraft is bound by regulatory-type legislation and so safety was a significant factor. The Judge also considered the defendant's actions following the charge, he had taken mentoring with the civil aviation authority, lost his job and admitted to the careless act, which showed a high degree of personal deterrence and accountability. The defendant had lost his job and could not get a new one because of the looming threat of conviction. He had invested a lot of time and money into becoming a pilot, had no previous black marks against his name and would face financial consequences. It was a finely balanced exercise but the Judge decided the actual and potential consequences of conviction outweighed the gravity of the offending. The discharge without conviction was granted and the defendant was ordered to pay $2000 towards the prosecutions costs. Judgment Date: 18 April 2019. *** Names have been changed ***